I Served 16 Months, Got Prop 47 Relief, Now Can I Expunge?

Ask any experienced criminal defense attorney in California if someone is eligible for expungement if they were convicted of a felony and who served a prison sentence of longer than a year.  The correct answer will be no.

The hypothetical gets more interesting if one serves a prison sentence for a felony, with a sentence of longer than a year, and then the felony is reduced to a misdemeanor under Proposition 47.  Is that conviction now eligible for expungement under those provisions of California law that concern non-probationary sentences?

Ms. E. Khamvongsa put reality to this hypothetical and tested it in Los Angeles Superior Court in Pomona.
In 2012, Khamvongsa pleaded no contest to felony possession of a controlled substance in violation of Health and Safety Code § 11377(a), as well as no contest to misdemeanor being under the influence of a controlled substance under Health and Safety Code § 11550(a).

Pursuant to the plea agreement, she admitted a prior strike from a 1998 case for second degree robbery.  The judge in Pomona, Salvatore Sirna, then sentenced her to 32 months in state prison, or the low term of sixteen months, doubled for her prior strike pursuant to Penal Code § 1170.12(a)-(d).

She then served her sentence in state prison, got out and Prop 47 was passed.  Proposition 47 does apply to Health and Safety Code § 11377(a), so Khamvongsa petitioned for resentencing under Prop 47 (Penal Code § 1170.18(f).  The judge granted the petition, re-designating the 11377(a) conviction as a misdemeanor.

She immediately thereafter petitioned for dismissal of her case under Penal Code § 1203.4a, also known as “expungement.”

California Penal Code § 1203.4a provides that if a defendant was convicted of a felony and not granted probation, he or she may seek dismissal of the charge one year after the conviction if he or she fully complied with the sentence of the court.  Additionally, the applicant may not then be serving a sentence for any other conviction, may not be charged with any crime and must, since the conviction, “lived an honest and upright life.” People v. Hamdon (2014) 225 Cal.App.4th 1065, 1069.

There are certain exceptions to application of § 1203.4a.  Anyone convicted of misdemeanor Penal Code § 288(c) (molestation of a 14 or 15 years old by someone at least ten years of age older) or any misdemeanor falling under Vehicle Code § 42002.1 (failure to stop for a police officer to submit for inspection of equipment or for an unsafe condition endangering a person (misdemeanors under Vehicle Code §§ 2800, 2801 or 2803) is ineligible for expungement.

Judge Sirna in Pomona denied the petition for dismissal under 1203.4a and Khamvongsa appealed to the Second Appellate District, which reversed in favor of Khamvongsa.

The appellate court emphasized in its opinion that when relief under Proposition 47 was granted, the offense was to be treated as a misdemeanor “for all purposes,” as Penal Code § 1170.18(k) states. See also People v. Abdallah (2016) 246 Cal.App.4th 736, 746.

This would mean that despite the fact that Khamvongsa had served a prison term for a felony, the felony had been re-designated a misdemeanor and 1203.4a states nothing about excluding someone on account of the type of sentence served, only that it was not probation.

Therefore, the case was remanded back to Pomona for further proceedings consistent with the appellate court’s ruling, which means the trial court (Judge Sirna) would have to change his ruling on the petition for dismissal.
Postscript:  In early 2018, Governor Jerry Brown granted Ms. Khamvongsa a pardon in this case.
For more information about expungement and Prop 47 issues, please click on the following articles:
  1. Is Expungement Worth It?
  2. Trial Court That Denied Expungement Because Petitioner Given a Five Year Joint Suspended Sentence Is Reversed on Appeal
  3. Expungement of DNA Record If Prop 47 Relief Granted?
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